# Kanhaiya Lal Sharma (In jail) v. State of U.P

- **Citation:** (2009) 2 ILRA 563
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-07-10
- **Case number:** Criminal Misc. Bail Application No. 30457 of 2008
- **Bench:** Vijay Kumar Verma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kanhaiya-lal-sharma-in-jail-v-state-of-u-p-41658
- **Pages:** 9

## Headnote

Code of Criminal Procedure-Section 439Bail-offence under Section 420, 409,
467, 468, 471 I.P.C.-applicant working
as Assistant Post Master-allowed the
agent to withdraw amount of Rs. 3 lac by
case by affixing forged signature of
depositor-instead of issuing the chequeitself goes to show the conspiracy of
applicant with postal agent-termed as
heinous crime if released on bail-people
would be reluctant in deposit of money
with post office-parity claimed-held-can
not be accepted.

Held: Para 25 & 26

In view of the observations made in
aforesaid
decisions,
I
am
of
the
564 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
considered opinion that merely on the
basis of the principle of parity, the
applicant cannot be released on bail in
present case of heinous nature.

If the persons like Kanhaiya Lal Sharma
(applicant) are allowed to be released on
bail in such crimes, then the people
would be reluctant to deposit their
money in Post Offices, which would
cause great damage to the institution.
Therefore, having regard to all these
facts,
but
without
expressing
any
opinion on merit of the case, in this
heinous crime, the applicant does not
deserve bail.
Case law discussed:
1983 Cr. L.J. 736, 1993 Cr L J 938, 1997 (34)
ACC 311, (1998 U.P. Cr.R. 263), AIR 1995 SC
705, Special Leave Petition No. 4059 of 2000,
2003 ALL. L. J. 625, 2005(52) ACC 205, 1996
A. Cr. R.867, 2009 (3) JT 385, 1901 AC 495;
(1987) 1 SCC 213; (2003) 2 SCC 111; (AIR
2004 SC 4778), AIR 2008 SC 946; AIR 2008
SC 863, 2008 (63) ACC 115.

## Text

2 All] Kanhaiya Lal Sharma V. State of U.P.
563
is given and the award so given, does not
suffer from any infirmity or substantial
illegality at the face of record, then
ordinarily, the application moved under
sub-section (2) of Section 14 of the Act
should be given primacy over the pending
suit and proceedings of the suit should be
stayed
till
the
court
decides
the
application filed by a party under the Act.
The satisfaction should be based on
genuineness of award and not the right
and title of parties with regard to property
in dispute.

14. In the present case, only because
the respondent No.3 is alleged to be to the
owner of the property, shall not make out
a case to render the award as waste paper.
Once the agreement is duly signed and
registered and the arbitrator renders
award, then the proceedings of the regular
suit ordinarily should be stayed by the
court.

15. In view of the above, learned
court below had incorrectly interpreted
the provisions contained in Section 34 of
the Act. The court below has failed to
exercise the jurisdiction vested in it. The
writ petition deserves to be allowed.

16. Accordingly, the writ petition is
allowed. A writ in the nature of certiorari
is issued quashing the impugned order
dated 19.4.1996 passed by the opposite
party No.1 and the judgment and order
dated 17.4.1997 passed by the respondent
No.2 with consequential benefits. The
proceedings of JSCC Suit No.7 of 1994
shall be stayed till final adjudication of
the controversy by the court in pursuance
of the powers conferred by Section 14 of
the Act. The court concerned is directed
to decide the application moved under
sub-section (2) of Section 14 of the Act in
accordance with law after providing due
opportunity to parties expeditiously and
preferably within six months from the
date of receipt of a certified copy of this
judgment/order. It is clarified that while
allowing the writ petition, this Court has
not entered into the merit of the
controversy. and the court concerned,
shall decide the application moved by the
petitioner independently.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.07.2009

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Misc. Bail Application No. 30457
of 2008

Kanhaiya Lal Sharma ...Applicant (In jail)
Versus
State of U.P.
...Opposite party

Counsel for the Applicant:
Sri Irfan Chaudhary

Counsel for the Opposite Party:
A.G.A.

Code of Criminal Procedure-Section 439Bail-offence under Section 420, 409,
467, 468, 471 I.P.C.-applicant working
as Assistant Post Master-allowed the
agent to withdraw amount of Rs. 3 lac by
case by affixing forged signature of
depositor-instead of issuing the chequeitself goes to show the conspiracy of
applicant with postal agent-termed as
heinous crime if released on bail-people
would be reluctant in deposit of money
with post office-parity claimed-held-can
not be accepted.

Held: Para 25 & 26

In view of the observations made in
aforesaid
decisions,
I
am
of
the
564 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
considered opinion that merely on the
basis of the principle of parity, the
applicant cannot be released on bail in
present case of heinous nature.

If the persons like Kanhaiya Lal Sharma
(applicant) are allowed to be released on
bail in such crimes, then the people
would be reluctant to deposit their
money in Post Offices, which would
cause great damage to the institution.
Therefore, having regard to all these
facts,
but
without
expressing
any
opinion on merit of the case, in this
heinous crime, the applicant does not
deserve bail.
Case law discussed:
1983 Cr. L.J. 736, 1993 Cr L J 938, 1997 (34)
ACC 311, (1998 U.P. Cr.R. 263), AIR 1995 SC
705, Special Leave Petition No. 4059 of 2000,
2003 ALL. L. J. 625, 2005(52) ACC 205, 1996
A. Cr. R.867, 2009 (3) JT 385, 1901 AC 495;
(1987) 1 SCC 213; (2003) 2 SCC 111; (AIR
2004 SC 4778), AIR 2008 SC 946; AIR 2008
SC 863, 2008 (63) ACC 115.

(Delivered by Hon'ble Vijay Kumar Verma, J.)

The applicant Kanhaiya Lal Sharma,
who was posted as Assistant Postmaster
in Head Post office Saharanpur at the
relevant time, has sought his release on
bail by means of this application under
section 439 of the Code of Criminal
Procedure (in short 'the Cr.P.C.'), in case
crime No. 386-C/2006, under sections
420, 409, 467, 468, 471 & 120-B Indian
Penal Code (in short 'the IPC.'), P.S.
Sadar Bazar, Saharanpur.

2. Shorn of unnecessary details, the
allegations made in the FIR lodged on
27.08.2006 at Sadar Bazar, Saharanpur by
the complainant Subodh Chandra Mathur,
in brief, are that on retirement from U.P.
State Sugar Corporation Ltd. in the year
2003, payment of Rs. 9,00,000/- (Rupees
Nine Lac) was made to the complainant
towards Provident Fund and gratuity,
which he invested in monthly income
Scheme in Head Post Office Saharanpur,
through authorized agent Prashant Tyagi,
his wife Smt. Kavita Tyagi, brother
Sushant Tyagi and father Pooran Chandra
Tyagi. The complainant had deposited the
said amount in his name as well as in the
names of his sons Mudit and Shobhit and
his
wife
Smt.
Neelu
Mathur.
Rs.3,00,000/- each were deposited in A/c
No. 1016784 and 1016785 on 28.08.2003
in the name of complainant and his son
Mudit. Thereafter, Rs.3,00,000/- were
deposited by the complainant in account
No. 1020020 on 28.05.2004 in the name
of his son Shobhit Mathur and wife Neelu
Mathur. Interest on monthly basis on
these
deposits
was
paid
to
the
complainant up to June 2006, but passbooks of aforesaid accounts were not
given by the agent to the complainant.
When no person came to make payment
of interest in the month of July 2006, the
complainant made inquiry from Head
Post Office Saharanpur, then he came to
know that entire amount of account No.
1016784
and
1016785
has
been
withdrawn on 03.03.2005 by Prashant
Tyagi by making forged signatures of
Account Holders on withdrawal form
(SB-7), showing his brother Sushant
Tyagi as witness and in the same manner,
entire amount of account No. 1020020
was also withdrawn on 16.11.2005 by the
said agent through some Jaspal Singh
showing him partner. It is further alleged
in the FIR that entire amount of the
aforesaid accounts has been withdrawn
due to collusion and conspiracy of
Assistant Postmaster Kanhiya Lal Sharma
and officials Amar Singh and Lokesh
Kumar of Head Post Office Saharanpur.
2 All] Kanhaiya Lal Sharma V. State of U.P.
565
3. I have heard argument of Sri Irfan
Chaudhary Advocate appearing for the
applicant and AGA for the State.

4. The main submission made by
learned counsel for the applicant was that
with similar allegations some other First
Information Reports were also lodged
against
the
applicant
in
District
Saharanpur and in the cases pertaining
pertaining to those FIR, the applicant has
been granted bail by another Benches of
this Court in case crime Nos. 386B.M./2006,
386-A.E./2006,
386A.Y./2006, 386-AT/2006, 386-AO/2006,
386-5B/2007,
386-CB/2006,
386BF/2006 and 386-CE/2006 and hence the
applicant deserves bail in present case
also on the basis of the principle of parity.
For this submission, my attention was
drawn towards certain bail orders which
have been filed as Annexure-2 (Paper
Nos. 22 to 25).

5. On merit, it was submitted by
learned counsel for the applicant that
entire
amount
from
the
accounts
mentioned in the FIR was withdrawn by
the authorized agent and since no amount
has been withdrawn by the applicant,
hence on this ground also, he deserves
bail. It was also submitted by the learned
counsel in this context that there is no
material in the case diary to show that
there was any conspiracy or collusion
between the applicant and authorized
agents, who have withdrawn the money
from the accounts of the complainant and
his family members.

6. Next submission made by learned
counsel for the applicant was that if the
authorized agent after withdrawing the
money from the accounts in question did
not pay the said money to the Account
Holders,
then
applicant
and
other
employees
of
post
office
are
not
responsible for this act and only the
agents can be held liable for the offences
alleged to have been committed. It was
also submitted in this context by the
learned counsel that no money was
entrusted
to
the
applicant
by
the
complainant or Account Holders and
hence the offence punishable under
section 406 IPC is not made out against
the applicant.

7. It was also submitted by learned
counsel that the applicant is languishing
in jail since 16.03.2007 and hence on the
basis of the long detention period in jail,
the applicant is entitled to be released on
bail, because due to delay in trial
fundamental
right
of
speedy
trial
envisaged
in
Article
21
of
the
Constitution is being violated.

8.

The bail
application
was
vehemently opposed by learned AGA
contending that the entire money from the
accounts of complainant and his family
members has been withdrawn due to
collusion and conspiracy of the applicant
and other officials of Head Post Office
Saharanpur and hence in this heinous
crime, the applicant should not be
released on bail, because due to the
collusion and conspiracy of the applicant
and other employees of Saharanpur Head
Post Office, the complainant has been
ruined due to withdrawal of entire money,
which was invested by him in monthly
Income Scheme.

9. It was also submitted by learned
AGA that as per rule of the Post Offices,
payment of the money exceeding Rs.
20,000/- in monthly income scheme or
other schemes can be made by cheque
566 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
only in the name of Account Holder, but
in present case, ignoring this mandatory
provision, the applicant had permitted the
authorized agent to withdraw about Rs.
9,00,000/- (Rupees Nine Lac) in cash,
which in itself shows that the applicant
was in collusion with the agent, who had
withdrawn the money by making forged
signatures
of
Account
Holders
on
withdrawal form (SB-7). It was also
submitted by learned AGA that without
active cooperation and conspiracy of the
applicant and other employees of post
office, the money from the account of
complainant could not be withdrawn in
the manner in which it was withdrawn by
the agents.

10. On the matter of granting bail on
the basis of the principle of parity, it was
submitted by learned AGA that parity
cannot be the sole ground for bail in
heinous crimes.

11. Having given my thoughtful
consideration to the rival submissions
made by the parties counsel and after
going through the entire case diary of
crime No. 386-C of 2006 and other
material available on record, I find force
in the contention of learned AGA that in
this heinous crime, the applicant does not
deserve bail.

12. It is true that some other
Benches of this Court have granted bail to
the applicant in the cases of similar nature
and some such bail orders have been filed
as Annexure -2, but I entirely agree with
the submission of learned AGA that parity
cannot be the sole ground for bail.

13. The matter of granting bail on
the ground of parity has been considered
in several decisions of this Court and
Hon'ble Apex Court. The Full Bench of
this Court in Sunder Lal Vs. State 1983
Cr. L.J. 736 did not accept this
proposition, which will be evident from
the following observations in para 15 of
the report:-

"The learned Single Judge since has
referred the while case for decision by the
Full Bench, we called upon the learned
Counsel for the applicant to argue the
case on merits. The learned Counsel only
pointed out that by reasons of fact that
other co-accused has been admitted to bail
the applicant should also be granted bail.
This argument alone would not be
sufficient for admitting the applicant to
bail who is involved in a triple murder
case...."

14. This question was again
examined by the Division Bench of this
Court in Nanha Vs. State 1993 Cr L J
938, where after consideration of several
earlier decisions on the point including
Sunder Lal (supra), the Hon'ble Judges
constituting the Bench gave separate
opinions. Hon'ble G.D. Dubey, J. held as
follows in para 24 of the reports;

"..... My answer to the points referred
to us is that parity cannot be the sole
ground for granting bail even at the stage
of second or third or subsequent bail
applications when the bail application of
the co-accused whose bail had been
earlier rejected are allowed and coaccused is released on bail. Even then the
Court has to satisfy itself that, on
consideration of more material placed,
further developments in the investigations
or
otherwise
and
other
different
considerations,
there
are
sufficient
grounds for releasing the applicant on
bail. If on examination of a given case, it
2 All] Kanhaiya Lal Sharma V. State of U.P.
567
transpires that the case of the applicant
before the Court is identically similar to
the accused on facts and circumstances
who has been bailed out, then the
desirability of consistency will require
that such an accused should be also
released on bail."

Hon'ble Virendra Saran, J. held as
follows in para 61 of the reports:

"My answer to the points referred to
is that if on examination of a given case it
transpires that the case of the applicant
before Court is identical, similar to the
accused, on facts and circumstances, who
has been bailed out, then the desirability
of consistency will require that such an
accused should also be released on bail
(Exceptional cases as discussed above
apart)....."

This shows that there was no
unanimity between the two Judges
constituting the Bench and according to
Hon'ble G.D. Dube, J. parity cannot be
the sole ground for granting bail to a coaccused."

15. The Hon'ble M. Katju, J., as His
Lordship then was, declined to grant bail
on the ground of parity and referred the
matter to larger Bench in Chander @
Chandra Vs. State of U.P. 1997 (34)
ACC 311. The matter came up for
consideration before a Division Bench.
While deciding the said reference in
Chander @ Chandra Vs. State of U.P.
(1998 U.P. Cr.R. 263) the Division Bench
held that:-

" a Judge is not bound to grant bail to
an accused on the ground of parity even
where the order granting bail to an
identically placed co-accused contains
reasons, if the same has been passed in
flagrant violation of well settled principle
and ignores to take into consideration the
relevant facts essential for granting bail."

16. It is further held by the Division
Bench in Chander @ Chandra Vs. State
of U.P. (1998 U.P. Cr.R. 263) that if bail
has been granted in flagrant violation of
well settled principles, the order granting
bail would not be in accordance with law.
Such order can never form the basis for a
claim founded on parity. The following
observations made by the Bench in Para
17
of
the
report
are
also
worth
mentioning:-

"The grant of bail is not a mechanical
act and principle of consistency cannot be
extended to repeating a wrong order. If
the order granting bail to an identically
placed co-accused has been passed in
flagrant violation of well settled principle,
it will be open to the Judge to reject the
bail application of the applicant before
him as no Judge is obliged to pass orders
against his conscience merely to maintain
consistency."

17. In this connection it will be
useful to notice the observations made by
the Hon'ble Apex Court, where the claim
was made on the ground that a similar
order had been passed by a statutory
authority in favour of another person. In
Chandigarh Administration Vs. Jagjit
Singh AIR 1995 SC 705, it was held as
follows in para-8 of the reports:

"....... if the order in favour of the
other person is found to be contrary to law
or not warranted in the facts and
circumstances of his case, it is obvious
that such illegal and unwarranted order
cannot be made the basis of issuing a writ
568 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
compelling the respondent-authority to
repeat the illegality or to pass another
unwarranted order."
"......
The
illegal/unwarranted
action must be corrected, if it can be
done according to law-indeed, wherever
it is possible, the Court should direct the
appropriate authority to correct such
wrong orders in accordance with law-but
even if it cannot be corrected, it is
difficult to see how it can be made a
basis for its repetition.
"..... Giving effect to such pleas
would be prejudicial to the interests of
law and will do incalculable mischief to
public interest. It will be a negation of
law and the rule of law."

18. Again in Secretary Jaipur
Development Authority V. Daulatmal
Jain, 1997(1) SCC 35, it was observed as
follows in para-24 of the reports:

"Article 14 proceeds on the premises
that a citizen had legal and valid right
enforceable at law and persons having
similar
right
and
persons
similarly
circumstanced, cannot denied of the
benefit thereof. Such persons cannot be
discriminated to deny the same benefit.
The rational relationship and legal back
up are the foundations to invoke the
doctrine of equality in case of persons
similarly situated. If some persons derived
benefit by illegality and had escaped from
the clutches of law, similar persons
cannot
plead
nor
the
Court
can
countenance
that
benefit
had
from
infraction of law and must be allowed to
be retained. Can one illegality be
compounded by permitting similar illegal
or illegitimate or ultra vires acts? Answer
is obviously, no."

19. In Special Leave Petition No.
4059 of 2000: Rakesh Kumar Pandey Vs.
Munni Singh @ Mata Bux Singh and
another, decided on 12.3.2001, the
Hon'ble Apex Court strongly denounced
the order of the High Court granting bail
to the co-accused on the ground of parity
in a heinous offence and while cancelling
the bail granted by the High Court it
observed that:-

"The High Court on being moved,
has considered the application for bail and
without bearing in mind the relevant
materials on record as well as the gravity
of
offence
released
the
accusedrespondents on bail, since the co-accused,
who had been ascribed similar role, had
been granted bail earlier."

20. The Apex Court in the aforesaid
law report has further observed:-

"Suffice it to say that for a serious
charge where three murders have been
committed in broad day light, the High
Court has not applied its mind to the
relevant materials, and merely because
some of the co-accused, whom similar
role has been ascribed, have been released
on bail earlier, have granted bail to the
present accused respondents. It is true that
State normally should have moved this
Court against the order in question, but at
the same time the power of this Court
cannot be fettered merely because the
State has not moved, particularly in a case
like this, where our conscience is totally
shocked to see the manner in which the
High Court has exercised its power for
release
on
bail
of
the
accused
respondents. We are not expressing any
opinion on the merits of the matter as it
may prejudice the accused in trial. But we
have no doubt in our mind that the
2 All] Kanhaiya Lal Sharma V. State of U.P.
569
impugned order passed by the High Court
suffers from gross illegality and is an
order on total non-application of mind and
the judgement of this Court referred to
earlier analysing the provisions of subsection (2) of section 439 cannot be of
any use as we are not exercising power
under sub-section (2) of section 439
Cr.P.C."

21. In the case of Salim Vs. State of
U.P. 2003 ALL. L. J. 625, this Court has
held that parity can not be the sole ground
for bail.

22. Again in the case of Zubair Vs.
State of U.P. 2005(52) ACC 205, this
Court observed that there is no absolute
hidebound rule that bail must necessarily
be granted to the co-accused, where
another co-accused has been granted bail.

23. The matter of granting bail on
the principle of parity was considered by
this Court in Satyendra Singh Vs. State
of U.P. 1996 A. Cr. R.867 also. The
following observations made in para 16 of
the report at page 871 are worth
mentioning:-

"The orders granting, refusing or
cancelling bail are orders of interlocutory
nature. It is true that discretion in passing
interim
orders
should
be
exercised
judicially but rule of parity is not
applicable in all the cases, where one or
more accused have been granted bail or
similar role has been assigned inasmuch
as bail is granted on the totality of facts
and circumstances of a case. Parity can
not be a sole ground and is one of the
grounds for consideration of the question
of bail. Some of the circumstances have
been enumerated in the Supreme Court
Decision in Gur Charan Singh Vs. State
(Delhi Administration), AIR 1978 SC
179.

24. Although the Hon'ble Apex
Court has granted bail recently on the
ground of parity in Izrahul lHaq Abdul
Hamid Shaikh and Anr. Vs. State of
Gujarat 2009 (3) JT 385, but this case
can not be said to be the authority to hold
that parity is a sole ground for granting
bail. It is nowhere held as a binding
precedent in this case that if bail has been
granted by a Bench to any accused, then
another Bench is also bound to grant bail
to
other
similarly
placed
accused.
Otherwise also a judgement of the Court
is only an authority for what it actually
decides and not what logically follows
from it and judgement of the Court is not
to be read mechanically as a Euclid's
Theorem nor as if it was a statute. See (1)
Quinn vs. Leathern, 1901 AC 495; (2)
Ambica Quarry Works vs. State of
Gujarat & others (1987) 1 SCC 213; (3)
Bhavnagar
University
vs.
Palittana
Sugar Mills Pvt. Ltd. (2003) 2 SCC 111;
(4) Bharat Petrolieum Corporation Ltd.
& another vs. N. R. Vairamani &
another (AIR 2004 SC 4778) (5) Sarva
Shramik Sanghatana (K.V.), Mumbai vs.
State of Maharashtra & Ors. AIR 2008
SC 946; (6) Government of Karnataka &
Ors. Vs. Gowramma & Ors. AIR 2008
SC 863.

25. In view of the observations made
in aforesaid decisions, I am of the
considered opinion that merely on the
basis of the principle of parity, the
applicant cannot be released on bail in
present case of heinous nature.

26. Coming to the merit of the case,
it is not disputed that the applicant
Kanhaiya Lal Sharma was posted as
570 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Assistant Postmaster in Head Post Office
Saharanpur on the dates, on which the
money from the accounts in question was
withdrawn by the agents. From the
statements of the complainant and other
witnesses recorded by the investigating
officer during investigation, this fact is
prima facie established that withdrawal
form (SB-7) through which the amounts
in question were drawn do not bear the
signature of Account Holders and by
making forged signatures on withdrawal
forms, the money was withdrawn in cash
by the agent Prashant Tyagi. It is not the
case of applicant in the bail application
that the withdrawal forms (SB-7), through
which the amounts in question were
withdrawn, bear the signatures of Account
Holders. Those withdrawal forms (SB-7)
were passed and approved by the
applicant in the capacity of Assistant
Postmaster. The payment of entire money
was made to the agent on the basis of the
endorsement of approval made to the
applicant on withdrawal forms. It is not
disputed that about Rs.9,00,000/- were
paid in cash. Letter No. 5-20/UP06/2000INV dated 29.8.2001, issued by the
Director General Post Offices, provides
that payment from Monthly Income
Scheme (MIS) account either byway of
premature or final closure or of monthly
interest if it is Rs. 20,000/- or more should
be paid by cheque only by the post offices
as provided in section 269-T of the
Income Tax Act. In present case, the
direction issued by the Director General
Post Offices was totally ignored by the
applicant, as payment of about nine lac
rupees was permitted to be made by him
in cash to the agent. Granting permission
to withdraw rupees more than 20,000/- in
cash by the applicant is prima facie proof
of his involvement in the collusion and
conspiracy with the agents to withdraw
the money from the accounts of the
complainant and his family members. Had
the payment of money from the accounts
of the complainant and his family
members was made through cheques, as
provided in aforesaid letter issued by
Director General Post Offices, then the
complainant would have been saved from
being ruined. Payment of entire money
from account No. 1020020, which was in
the name of Smt. Neelu Mathur and
Sobhit, was permitted to be made to one
Jaspal Singh without summoning the
Account Holders to verify whether Jaspal
Singh is their partner or not. No consent
of Account Holders was taken by the
applicant to pay the money to Jaspal
Singh, a third person not connected with
account
No.
1020020.
It
is
very
unfortunate that the applicant Kanhaiya
Lal Sharma, who was holding responsible
post of Assistant Postmaster in the Head
Post Office Saharanpur and who is
supposed to know the relevant rules about
withdrawal of money from Monthly
Income Scheme or other Scheme of post
offices, permitted the agent Prashant
Tyagi to withdraw about Rs.9,00,000/- in
cash in utter disregard of the directions
issued by Director General of Post Offices
as mentioned herein-above. The applicant
has not only caused irreparable loss to the
complainant, but he has caused great
damage to the institution in which he was
working. People deposit their money in
Banks and Post Offices in the hope to
increase their capital and for security
purpose also. It appears that the applicant
with the help of other employees of Head
Post Office Saharanpur was operating a
racket, as some other first information
reports also have been lodged in such
matters against the applicant. Innocent
investors have been deprived of their
whole life earning by the accused persons.
2 All] Kotak Mahindra Bank Ltd. V. Debt Recovery Appellate Tribunal and others
571
If the persons like Kanhaiya Lal Sharma
(applicant) are allowed to be released on
bail in such crimes, then the people would
be reluctant to deposit their money in Post
Offices, which would cause great damage
to the institution. Therefore, having
regard to all these facts, but without
expressing any opinion on merit of the
case, in this heinous crime, the applicant
does not deserve bail.

27. In my considered opinion, on the
basis of the long incarceration in jail also,
the applicant can not be admitted to bail
in this heinous crime. In this context,
reference may be made to the case of
Pramod Kumar Saxena vs. Union of
India and others 2008 (63) ACC 115, in
which the Hon'ble Apex Court has held
that mere long period of incarceration in
jail would not be per-se illegal. If the
accused has committed offence, he has to
remain behind bars. Such detention in jail
even as an under trial prisoner would not
be violative of Article 21 of the
Constitution.

28.

Consequently,
the
bail
application of the applicant Kanhaiya Lal
Sharma is hereby rejected.

29. The trial court concerned is
directed to conclude the trial of the
applicant and other accused persons
within six months making sincere efforts
and avoiding unnecessary adjournments.

30. SSP Saharanpur also is directed
to depute special messenger to procure the
attendance
of
the
witnesses
after
obtaining their summons from the court
concerned.

31. Before parting with this order, I
would like to point out that whatever
observations have been made herein-
above by me are for the purpose of
disposal of this bail application only. The
trial court would be at liberty to take its
own view on all the matters and will not
be guided by the observations made by
me in this order.

32. The office is directed to send a
copy of this order within a week to the
trial court and SSP concerned for
necessary action.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.07.2009

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No.33791 of 2009

Kotak Mahindra Bank Ltd.
...Petitioner
Versus
Debts
Recovery
Appellate
Tribunal,
Allahabad and others
...Respondents

Counsel for the Petitioner:
Sri Anil Tiwari
Sri O.P. Misra
Sri Apoorva Tewari

Counsel for the Respondents:
Sri Zafar Naiyer, Addl. Adv. General
Sri Sachin Upadhyay
Sri Ashok Mehta
Sri P.N. Tripathi
Sri Jayant Banerji
Sri P.J. Nagar
S.C.

Debt Recovery Tribunal Act 1994-Section
20, 21 and 22-in defective appealagainst
the
order
passed
by
Debt
recovery Tribunal-without pre-deposit,
without considering the question of time
barred-appellate Tribunal passed interim
order-held-tribunal being creation of